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kenya<br />

Reaching a turning point<br />

<strong>Social</strong> Development Network<br />

Pr<strong>of</strong>. Edward Oyugi, Philip Thigo, John Kipchumbah,<br />

Ayoma Matunga<br />

United Nations Millennium Campaign (UNMC)<br />

Charles Abugre<br />

Kenya Treatment Access Movement (KETAM)<br />

James Kamau<br />

SEATINI<br />

Oduor Ong’wen<br />

KENDREN<br />

Wahu Kaara<br />

Daraja-Civic Initiatives Forum<br />

Esther Nzioka<br />

CLAN- Migori<br />

William Oloo Janak<br />

Reality <strong>of</strong> Aid<br />

Vitalice Meja<br />

In December 2010, following years <strong>of</strong> struggle for<br />

true sovereignty and citizenship, the people <strong>of</strong> Kenya<br />

managed to negotiate a new social contract in the<br />

form <strong>of</strong> a ground-breaking Constitution. The path to<br />

the 2010 Constitution has been neither straight nor<br />

smooth, with constitutional reform a major issue<br />

since the country gained independence. Attempts to<br />

amend the 1963 Constitution intensified in the late<br />

1990s and early 2000s, but succeeded only after<br />

the outbreak <strong>of</strong> post-election violence in early 2008<br />

and the intervention <strong>of</strong> the African Union through<br />

a mediation team headed by then UN Secretary-<br />

General K<strong>of</strong>i Annan. The Constitution was presented<br />

to the Attorney General on 7 April 2010, <strong>of</strong>ficially<br />

published on 6 May 2010 and put to a referendum on<br />

4 August 2010. Approved by 67% <strong>of</strong> Kenyan voters,<br />

it was promulgated on 27 August 2010.<br />

This new Constitution promises a transformative<br />

agenda that, if fully realized, will bring about a new<br />

political-economic framework in which the country<br />

could break from the neo-patrimonial system (in<br />

which patrons use State resources to secure the loyalty<br />

<strong>of</strong> clients in the general population) bequeathed<br />

to them by neo-colonialism. Its four transformative<br />

features are: an expanded Bill <strong>of</strong> Rights and a promise<br />

to address inequality and marginalization; 1 farreaching<br />

devolution <strong>of</strong> public authority; a chapter on<br />

leadership and integrity founded on the principles <strong>of</strong><br />

selfless public service, discipline and accountability;<br />

1 The Bill <strong>of</strong> Rights goes beyond the usual political and civic<br />

rights to include economic, social and cultural rights. New<br />

Constitution <strong>of</strong> Kenya, Nairobi, 2010, p. 4.<br />

In 2010, after many years <strong>of</strong> struggle, Kenyans finally managed to negotiate the groundbreaking 2010<br />

Constitution. Its focus on basic rights, participation, accountability to citizens and public service provides the<br />

basis for defining the role <strong>of</strong> the State as central to constructing an economy that fulfils the promise <strong>of</strong> equity,<br />

participation and basic social and economic rights. By making popular participation and service delivery the<br />

core politics <strong>of</strong> sustainable development, the people will transform themselves into a new revolutionary force.<br />

In environmental terms, the new Constitution is also a step forward since it establishes the right <strong>of</strong> every Kenyan<br />

to a clean and healthy environment.<br />

Basic Capabilities Index (BCI)<br />

BCI = 77<br />

Births attended<br />

44<br />

100<br />

0<br />

78<br />

Children reaching<br />

5th grade<br />

100 100<br />

National reports 130 <strong>Social</strong> <strong>Watch</strong><br />

Surviving under-5<br />

and a value system based on the sovereignty <strong>of</strong> the<br />

people and a culture <strong>of</strong> human rights.<br />

If properly implemented, the Constitution will<br />

<strong>of</strong>fer Kenyans a unique opportunity to obtain straight<br />

answers to two long-standing questions, hitherto the<br />

source <strong>of</strong> intermittent and violent sub-national conflicts:<br />

what is the concrete meaning <strong>of</strong> being a Kenyan<br />

citizen and what does the State <strong>of</strong>fer to the majority <strong>of</strong><br />

the people? The 2010 Constitution’s focus on basic<br />

rights, participation, accountability to citizens and<br />

selfless public service also provides the context for<br />

defining the role <strong>of</strong> the State as central to constructing<br />

an economy that fulfils the promise <strong>of</strong> equity, participation<br />

and basic social and economic rights.<br />

This will enable Kenya to break free from the<br />

stranglehold <strong>of</strong> neo-liberal policies imposed through<br />

various means including conditions for development<br />

aid, political arm-twisting, asymmetric multilateral<br />

obligations and the collusion <strong>of</strong> local interests with<br />

foreign agendas. It will also help to address the issue<br />

<strong>of</strong> widespread corruption. For example, recent social<br />

audits reveal that the benefits <strong>of</strong> both the Local Authorities<br />

Trust Fund (LATF) and the Constituency Development<br />

Fund (CDF) hardly reached their primary<br />

stakeholders. Most <strong>of</strong> the funds earmarked for them<br />

have been embezzled by the members <strong>of</strong> Parliament<br />

and their cronies who were supposed to manage<br />

these resources on behalf <strong>of</strong> citizens.<br />

What the new Constitution has to <strong>of</strong>fer<br />

The new Constitution presents a holistic and rightsbased<br />

approach that guarantees equitable social development<br />

rooted in the productive capacities <strong>of</strong> the<br />

society as an alternative to the current paradigm that<br />

is based on rent seeking. It implies a new political<br />

economy based on popular participation not only<br />

92<br />

Gender Equity Index (GEI)<br />

GEI = 58<br />

100<br />

0 14<br />

Empowerment<br />

100<br />

86<br />

75 100<br />

Education<br />

Economic activity<br />

in the mechanics <strong>of</strong> politics but also in the shaping<br />

<strong>of</strong> the economy and the sharing <strong>of</strong> the benefits <strong>of</strong><br />

value-added production. Such a political economy<br />

will seek to rebalance corporate sector interests with<br />

the social development objectives <strong>of</strong> citizens and the<br />

State’s obligation to provide a social protection floor<br />

for all sectors <strong>of</strong> society. It suggests a new State that<br />

is both democratic and developmental.<br />

A democratic developmental State will separate<br />

the public and the private domains so that those<br />

who provide public services cannot at the same time<br />

be in the private sector. This is essential to avoid<br />

conflicts <strong>of</strong> interest and for the State to balance the<br />

public good with the pr<strong>of</strong>it motive. A democratic<br />

developmental State will steer the economy away<br />

from unproductive rent seeking into value-added<br />

production based on building the productive capacities<br />

<strong>of</strong> its citizens. It will intervene to ensure that<br />

pr<strong>of</strong>its arise from productive activity and innovation<br />

and in this process not only redirect but also reshape<br />

them. It will focus on employment creation, not just<br />

aggregate growth, and will ensure that the growth<br />

process is itself distributive and aimed at enhancing<br />

well-being. It will use taxation as its main source <strong>of</strong><br />

financing development, as a tool for redistribution<br />

and redirection <strong>of</strong> incentives and as a means <strong>of</strong> enhancing<br />

citizen agency.<br />

The new Constitution also seems propitious<br />

regarding environmental issues. For example,<br />

Section 42 <strong>of</strong> Part 2 (“Rights and fundamental<br />

freedoms”) states: “Every person has the right to<br />

a clean and healthy environment, which includes<br />

the right a) to have the environment protected<br />

for the benefit <strong>of</strong> present and future generations<br />

(…), and b) to have obligations relating to the<br />

environment…”, while article 69 states that “the

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